In this news alert:

UNITED KINGDOM - New Method for Calculating Absences for Indefinite Leave to Remain Applications

Effective 11 January 2018, UK Visas and Immigration (UKVI) now calculates absences from the United Kingdom in relation to an application for Indefinite Leave to Remain (ILR) in a different way.

UKVI caseworkers can now refuse applications for ILR based on five years continual residence in the UK if the 180-day absence limit has been exceeded in any rolling twelve-month period.

Previously, applications needed to evidence fewer than 180 days' absences in any of the five consecutive twelve-month periods prior to the date of the application.

Exercising Discretion

The guidance states that UKVI may apply some discretion where applicants are deemed to have exceeded the 180-day absence limit, in the following cases:

If the absences were due to 'serious and compelling' reasons; or

If it can be demonstrated that the changes as to how the 180 days are counted will cause the applicant 'exceptionally harsh consequences'.

UKVI suggest applicants would need to provide a detailed letter setting out the reasons why they believe a negative decision would indeed cause 'exceptionally harsh consequences'.

This is particularly relevant for Tier 2 (General) migrants as they may be caught by a six-year cap applicable to this visa category. This means that if Tier 2 migrants do not qualify for ILR due to excessive absences and they have already spent six continuous years in the UK on this visa type, they may have to return to their home countries (unless able to move into a different visa category) and will usually be subject to a “cooling-off” period preventing them from returning to the UK under any Tier 2 category (the only exception applies to “high-earners”).

Partners

As reported in December, applications for ILR made by partners of points-based system migrants will be required to show that they have not been absent from the UK for more than 180 days per year, just as main applicants are required to do.

This change applies to absences from the UK during leave to remain granted under the rules in place from 11 January 2018.

Action Items

Employers who may be affected by the new rules are encouraged to consult their immigration specialist for a case-specific assessment.